Written by Jeremy Mittman and Stephen Franz

On September 9, 2020, Governor Gavin Newsom signed Assembly Bill (“AB”) 1867.  AB 1867 amends the Labor Code and requires, among other things, that private employers with 500 or more workers (i.e. those that are excluded from the Families First Coronavirus Response Act) provide COVID-19 supplemental paid sick leave beginning September 19, 2020. 

The Purpose of AB 1867: According to Governor Newsom, AB 1867 is designed to close the gaps in paid sick leave already provided by the federal FFCRA and California’s Executive Order N-51-20 (applicable to “food sector workers” whose employer has at least 500 employees). 

Who is a Covered Worker:  “Covered workers” under AB 1867 are employees of hiring entities who must leave their home to perform work.  

How Much Supplemental Paid Sick Leave is a Worker Entitled to: Under the Order, employers must provide covered workers with 80 hours of supplemental paid sick leave to full-time employees.  Part-time workers are entitled to paid sick leave equal to either (a) their hours worked over a normal two-week schedule; (b) if the worker had a variable schedule, fourteen times the average number of hours worked each day for six months prior; or (c) if the worker works a variable numbers of hours and has for a period of 14 days or fewer for the employer, the total number of hours the worker has worked. 

A worker’s supplemental sick pay must be paid at a rate equal to the highest of either (a) the worker’s regular rate of pay over the last pay period; (b) the state minimum wage; or (c) the local minimum wage.  However, Supplemental sick pay shouldn’t exceed $511 per day ($5,110 in the aggregate). 

Why Workers May Take Supplemental Paid Sick Leave: Under AB 1867, a covered worker may take supplemental paid sick leave if he/she is unable to work for any of the following reasons:

1. The worker is subject to a Federal, State, or local quarantine/isolation order related to COVID-19;
2. The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
3. The worker is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Covered workers may submit written or oral requests to employers for leave.  AB 1867 does not specify what, if any, documentation an employer may request from a worker before providing leave.  

Supplemental Paid Sick Leave in Addition to Other Paid Leave: An employer cannot require a covered worker to use any other paid or unpaid leave, paid time-off, or vacation time before the worker uses supplemental paid sick leave under the law.  AB 1867 further provides the supplemental paid sick leave is in addition to any paid sick leave that may already be available to employees under California law.

The only (narrow) exception to this rule is where an employer already provided supplemental paid leave related to COVID-19 for the reasons identified in AB 1867.  If this supplemental paid leave was paid at the rate required by AB 1867, then the employer may count the hours paid towards the workers’ entitlement under AB 1867. 

Expiration Date: AB 1867’s requirement to provide COVID-19 supplemental paid sick leave ends either when the paid sick leave provisions of the FFCRA expire, or on December 31, 2020, whichever date is later.

Employers Must Provide Notice of Supplemental Paid Sick Leave: Employers must post notice of the new law either in the workplace or if workers do not frequent the workplace, by electric means.  The Labor Commissioner’s model notice is now available here.    

Wage Statement Requirement: Starting the first full pay period after September 9, 2020, employers must provide workers the amount of supplemental paid sick leave available on the itemized wage statement or in a separate writing provided on pay day.    

Penalties for Noncompliance: The Labor Commissioner has the authority to investigate and enforce the law and order temporary relief.  Employers may be liable for reinstatement, back pay, the payment of sick days unlawfully withheld, and the payment of administrative penalties.  The Labor Commissioner or Attorney General may also file a civil lawsuit against employers who violate AB 1867, and may collect legal or equitable relief on behalf of the aggrieved as may be appropriate to remedy the violation. 

The DIR’s Additional Guidance:  The Department of Industrial Relations released an FAQ for employers about the new law’s supplemental paid sick leave requirements.  Here are the top 3 takeaways for employers from the FAQ. 

1. Independent Contractors: COVID-19 Supplemental Paid Sick Leave does not apply to independent contractors (assuming they are in fact properly classified as such).

• Doctor’s Certification Not Required.  A hiring entity may not deny a worker COVID-19 Supplemental Paid Sick Leave based solely on a lack of certification from a healthcare provider.  However, it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the hiring entity has other information indicating that the worker is not requesting COVID-19 Supplemental Paid Sick leave for a valid purpose.  In any such claim the reasonableness of the parties’ actions will undoubtedly come into play. For example, if a worker informs a hiring entity that the worker is subject to a local quarantine order, has to stay home, and qualifies for COVID-19 supplemental paid sick leave, but the hiring entity subsequently learns that the worker was at a park, the hiring entity could reasonably request documentation.

• Local Ordinances. If a hiring entity already provides a full-time worker 40 hours of COVID-19-related supplemental paid sick leave pursuant to a local ordinance, those 40 hours would count toward the hiring entity’s obligations under California law so long as the leave provided is for a reason listed under California law and is at least at the same rate of pay as California law requires.

Employers should consult AB 1867, or their trusted employment counsel, for further guidance.